Alaska Prosecutor Accused of Exploiting Judge Ties for Recusal

A federal public defender has accused the US attorney’s office in Alaska of trying to force a judge’s recusal in a controversial murder case last year by adding a prosecutor to the trial team who had sent nude photos to the judge.

In early 2023, Karen Vandergaw, a senior prosecutor, suddenly joined a case overseen by Joshua Kindred, then one of two active judges on the Alaska federal bench. At the time, Kindred’s cases involving Vandergaw had for months been reassigned away from him, though the federal defenders office didn’t know why.

Gary Colbath, the Alaska federal defender’s office No. 2, said he confronted the lead prosecutor on the case about his suspicions of improper maneuvering and warned he planned to accuse the office of misconduct in a motion to dismiss. Kindred had a reputation for being more lenient toward criminal defendants.

“There was no reason that she noticed an appearance, in our eyes, other than as a strategic attempt to cause Kindred’s recusal,” Colbath said in an interview.

The following business day after Colbath said he raised concerns, Vandergaw was withdrawn from the prosecution team without explanation, court records show.

The case is one of dozens now under scrutiny since Kindred resigned last month amid findings that he sexually harassed a law clerk and created a hostile environment for other employees.

The judge announced plans to step down shortly before the public release of a judicial order detailing his conduct. The order found Kindred had a “flirtatious rapport” and received nude photographs from an unnamed senior prosecutor, whom Bloomberg Law has since identified as Vandergaw. In November 2022, the month the judiciary initiated its inquiry, a number of Vandergaw’s cases before Kindred were reassigned to other judges.

Now, both the US attorney’s and federal defenders offices are conducting their own reviews into Kindred’s past cases for potential conflicts of interest. The Justice Department is deploying a veteran lawyer who has previously helped other troubled offices to support the case review.

A spokeswoman for the Alaska US attorney’s office declined to comment on Colbath’s allegations.

Jamie McGrady, Alaska’s chief federal defender, confirmed Colbath’s description of his meeting with the lead prosecutor, named James Klugman, based on notes, calendar entries, and her recollection of what Colbath told her at the time.

“I’ve never seen anything like this,” said Colbath, a public defender for 23 years.

Ongoing review

The murder case involving defendant Matthew Moi is one of more than 40 identified so far by the Alaska US attorney’s office as posing potential conflicts of interest stemming from the judge’s misconduct and inappropriate relationships with lawyers who appeared before him.

Vandergaw appeared on the docket in some capacity in nearly three dozen of those cases, while Klugman’s name was on the docket in at least 13, according to a review by Bloomberg Law. Though Kindred was taken off the case, either by recusal or reassignment order, in the majority of those on the office’s list, he remained on the case, sometimes until conclusion, in at least 10 matters, including Moi’s.

Legal ethics experts outside of Alaska said it would be inappropriate for a US attorney’s office to add an attorney to a case to disqualify the judge.

“It would be certainly beneath the office if that’s the sort of maneuver they tried,” said Keith Swisher, a legal ethics professor at the University of Arizona’s law school.

It’s possible that Vandergaw’s addition to the case may have been negligence or a failure by the office to conduct proper ethical reviews, said Jeremy Fogel, executive director of the Berkeley Judicial Institute and a former California federal judge.

“You have three buckets this could fall in: It’s negligent, it’s reckless, or it’s intentional,” Fogel said. “It’s not okay under any circumstance” for a conflicted prosecutor to be added to a docket, Fogel said. “But the question is, how culpable are they?”

Private attorneys are also eyeing current and past cases for potential relief due to the conflicts. Defense lawyers and academics outside of Alaska have said there may be grounds to reopen any cases Kindred heard involving the US attorney’s office.

Lawyers for one man found guilty earlier this year in Kindred’s courtroom of a fraud scheme said in an Aug. 5 motion they are “exploring” potential conflicts in asking for a pause in criminal proceedings while they supplement their request for a new trial.

The lawyer for another man convicted of cyberstalking asked in July for her client’s case to be dismissed due to Kindred’s misconduct, likening the judge’s harassment of his former clerk to the cyberstalking offense.

That lawyer also claimed that the prosecutor who sent nude photos to Kindred was present in the courtroom for the entire trial and was observed speaking to the prosecutors, without identifying the prosecutor as Vandergaw.

Senior managers at the US attorney’s office “were aware that this constituted a serious conflict of interest” and didn’t disclose it, the filing said.

Concerns over conflicts have extended to at least one civil case handled by the US attorney’s office that didn’t involve Vandergaw. Zeke Williams, a Colorado-based lawyer, filed a request for relief in late July on behalf of a helicopter ski operator who lost a permitting case involving the US Forest Service before Kindred.

Williams argued that Kindred should have recused from that case because he had an inappropriate relationship with lawyers at the US attorney’s office, which represented the agency, even though those lawyers weren’t on this specific case.

The Alaska US attorney’s office should be treated like a law firm, Williams argued in the filing, and the judge should recuse if he had engaged in inappropriate relationships with any attorneys at that firm under the Alaska professional conduct rules.

“The US attorney’s office is standing aside saying the issue and the problem is much smaller than it actually is, and I’m disappointed in them,” Williams said in an interview.

‘Strategic attempt’

Moi was convicted in 2022 of murdering another member of a drug trafficking enterprise and other drug and money laundering offenses.

His lawyers asked for a new trial on the murder conviction, arguing that the government’s “investigative efforts were quite minimal” and suggesting an alternative killer.

Judge Timothy Burgess, a former prosecutor who oversaw Moi’s trial, agreed and threw out the homicide convictions after finding two of the government’s witnesses weren’t credible.

The retrial was assigned to Kindred in November 2022. That was the same month that the US Court of Appeals for the Ninth Circuit started its investigation into Kindred that prompted the judge to recuse in cases involving Vandergaw and others.

Kindred was open about his reputation as a more lenient sentencer.

At another hearing earlier in 2022, Kindred acknowledged that lawyers at the US attorney’s office “would suggest that my philosophy is probably more on the lenient side” when it comes to sentencing.

“I approach sentencing with a certain amount of optimism, that this may be the catalyst for change,” Kindred said, according to a hearing transcript.

Two months after the case was assigned to Kindred, on Jan. 30, 2023, Vandergaw filed a notice of appearance on the court docket.

The case had been pending for years, and Colbath saw the move as an attempt to get the case away from Kindred.

If Kindred recused, the case would most likely have then gone to Chief Judge Sharon Gleason, the other active judge on the bench besides Kindred, who Colbath sensed the prosecution considered “a far more favorable trial and sentencing judge.”

Colbath recalled Klugman had “nothing to say to me” after he warned him about his plans to file a request to dismiss the case, and they never subsequently discussed it. Klugman filed a notice that Vandergaw had withdrawn from the case on Feb. 6, 2023.

“Essentially it appeared to us that they were treating it as if it had never happened,” Colbath said.

Kindred continued to oversee Moi’s case, and Moi ultimately reached a plea agreement this year on one count of using a firearm to commit murder in furtherance of drug trafficking.

—With assistance from Ben Penn